Damages Flashcards
White & Carter (Councils) Ltd v. McGregor [1962] AC 413(Snow White in a bin wheeling around Jimmy Carter - 39th president of the USA)
The claimant supplied bins to the local authority and were allowed to display adverts on these bins.The claimant entered into contract with garage for 3 years. Contract stated 3 annual payments due OR up front payment made. Manager called up on day contract had been made to cancel. Claimant ignored the defendant’s communication and carried on.Held:The House of Lords held that the claimant was not obliged to accept the breach of contract and could continue with the contract. They were thus entitled to full payment for the three years advertising.(This case seems to ignore the general rule of the duty to mitigate loss applicable to claims for damages).
Frost v Knight (1872) LR 7 EXCH 111 COCKBURN CJ
Marriage contract upon father’s death. Father was still alive when defendant gave notice he was going to breach the contract. Contract had not been fulfilled yet. Was found claimant could either wait until time of contract to claim damages or bring an action on breach immediately. “The promisee may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance: but in that case he keeps the contract alive. He may treat the repudiation as a wrongful putting an end to the contract, and he may at once bring his action as on a breach; he will be entitled to such damages as would have arisen from the non-performance of the contract.”
Yukong Line LTD v rendsburg investment corp of liberia [1996] 2 LLoyds rep 604 at 607 per moore-bick J
Although injured party is bound by his election once it has been made, the fact that he has affirmed the contract does not preclude him from treating it as discharged on a subsequent occasion if the other party again repudiates it
TELE 2 INT’L SA V POST OFFICE [2009] ewca civ 9 aikens lj
Continued performance of the agreement for nearly a year without any protest is only consistent with an election to abandon the right to terminate. A clear and unequivocal communication, by conduct, of the election to affirm PO was not entitled to give the notices to terminate when PO ceased to perform this was a repudiator breach.
Scotznia GDANSKA A v Lativian supping [2001] 1 lloydsx rep 537. Thomas J (166)
A number of authorities make it clear that in the case of a repudiatory breach, the innocent party must make an election (168) However it is also clear that where there is continuing repudiatory conduct, such as where there is an obligation to pay, the innocent party who has elected to continue may be able to treat the continued none performance as fresh act of repudiation.AS long as the contract remains alive, the innceont party runs the risk that a merely anticipatory repudiatory breach, a thing “writ in water” until acceptance, cna be overtaken by another event. Such as frustration or even his own breach. He also runs the risk that the party in repudiation will resume performance ending any continuing right to elect.
Sentinel Int’l Ltd V cordes [2008] UKPC 60’
May be terminated by injured part’s failure to subsequently perform contractual duties: the santa clara [1996] AC 800; Effect: Damages from that momentHochster v De la tour [1853]. Damages to limited to innocent part’s actual loss.
DAMAGES: Lord brown in the golden strait corp. v nippon yusen kubishika kaisha “The golden victory” [2007] UKHL 12
The owner’s argument seeks to extend the available market rule well beyond its proper scope at the expense of the Lord Blackburn’s fundamental principle: TO RESTORE THE INJURED PARTY TO THE SAME POSITION HE WOULD HAVE BEEN IN BUT FOR THE BREACH, NOT SUBSTANTIALLY TO IMPROVE UPON IT.It is one thing to say that the injured party, mitigating his loss as th ebreach date rule requires him to do, thereby takes any future market movement out of the equation and to that extent crystallises the measure of his loss; it is quite another to say, as the owners do here, that it requires the arbitrator or court when finally determining the damages to ignore subsequent event.
Thake v Maurice [1986] 1 ALL ER 479)
Non compliance will be a breach only where it is a result of lack of reasonable careTO DAMAGES (AND MAY HAVE OPTION OF TERMINATION)
(photo production v securicor [1980] AC 827 per Lord Wilberforce)
Consequences: damages and option to terminate. Repudiation/breach does not automatically bring contract to an end
AG v Blake [2000] 3 WLR 625
Based on defendants gain; ‘full account’ of profits. ‘punitive dimension to damages? Blake published book about intelligence agency against contract (official secrets act). They received all profits from then on and which had already been made.
Wrotham Park v Parkside Homes [1974] 1 WLR 798;
Couldn’t develop on land, built anyway. Owners sued for breach of covenant. Bringhman J awarded damages of 2,500 or 5% of anticipated profits. Reasonable sum for relaxation of rights. Only recieved damages for breach of covenant. He also recieved profits from the properties. This was the reasonable sum for relaxation of rights.
Vercoe v Rutland Fund Management LTD [2010] EWHC 424 sales J. [339]
Previously it was not fair to take a full account of profits because he did not benefit from his breach.The test is whether the claimant’s interest in performance of the obligation in question, makes it just that the defendant should retain no benefit from his breach.The defendant published confidential information in an autobiography.”exceptional circumstances”
Experience Hendrix LLC v PPX Enterprises [2003] EWCA CIV 323, Mance LJ (Wrotham Rather Than Blake)
The Defendant had been granting licences to exploit master recordings containing works featuring Jimi Hendrix, in breach of a 1973 agreement settling earlier litigation. The Claimant had no evidence to show or quantify any financial losses suffered as a result of the breaches.Held:Relying on Attorney General v Blake [2001] AC 268 the remedy of account of profits was available for breach of contract but in the circumstances of this case a full account was not appropriate but the Defendant should make a reasonable payment for its uses of master recordings in breach of the settlement agreement, assessed as a notional licence fee which C might reasonably have demanded to permit the breaches complained of.
Ruxley Electronics & Construction LTD v Forsyth [1996]
FactsRuxley Electronics Ltd was meant to build a seven foot six inch deep pool, but it was built to only six feet. It was found that the pool was safe for diving, and anyway Forsyth never intended to put in a diving board. Also, Forsyth had no intention to use the damages to correct the pool. Moreover £21,560 was unreasonable for a new pool. But Forsyth refused to pay any money given the defect. Ruxley Electronics Ltd sued for breach of contract. Forsyth counterclaimed requesting damages to fix the pool as it should have been.The trial judge gave the diminution of value was zero and the cost of cure was £21,560. He awarded £750 for inconvenience and £2500 for loss of amenity. The Court of Appeal said the cost of rebuilding the pool should be awarded.JudgmentThe House of Lords upheld an award of £2500 for loss of amenity. Lord Mustill said ‘the law must cater for those occasions where the value of the promise to the promisee exceeds the financial enhancement of his position which full performance will secure.’ So ‘consumer surplus’ was recognised in an award for breach of contract. To award them nothing would be to say the promise was illusory, and that was unsatisfactory. But correcting was too expensive, and too much for the loss of Mr Forsyth. It would be contrary to ‘common sense’ and unreasonable. So we must look to ‘the loss truly suffered by the promisee’.“ a common feature of small building works performed on residential property that the cost of the work is not fully reflected by an increase in the market value of the house, and that comparatively minor deviations from specification or sound workmanship may have no direct financial effect at all.”Lord Lloyd said that though courts do not care what damages will be used for, the intention of the innocent party for what he does with them may be relevant to the issue of reasonableness in awarding damages.
Malik v BCCI [1998] AC 20;
Malik and Mahmud had both lost their jobs and they sought employment elsewhere. They could not find jobs. They sued the company for their loss of job prospects, alleging that their failure to secure new jobs was due to the reputational damage they had suffered from working with BCCI.The House of Lords unanimously held that the term of mutual trust and confidence would be implied into the contract as a necessary incident of the employment relation. This was a term implied by law. Lord Steyn said the term, as it had evolved, was a ‘sound development’. He continued.[1]“ Such implied terms operate as default rules. The parties are free to exclude or modify them. But is common ground that in the present case the particular terms of the contracts of employment of the two applicants could not affect an implied obligation of mutual trust and confidence… It was a change in legal culture which made possible the evolution of the implied term of trust and confidence…The motives of the employer cannot be determinative, or even relevant, in judging the employees’ claims for damages for breach of the implied obligation. If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”The principle was not limited by any rule that an employee had to know of the breach while the employment relationship subsisted, since if that ‘were right it would mean that an employer who successfully concealed dishonest and corrupt practices before termination of the relationship cannot in law commit a breach of the implied obligation whereas the dishonest and corrupt employer who is exposed during the relationship can be held liable in damages. That cannot be right.’
